Monday, Oct 13 2014
• 12 p.m. (ET)

Supreme Court Update

The Supreme Court is considering a number of hot-button issues this term that are already having an effect on Virginia and other states. Gay marriage advocates celebrated last week as the Court opened the door to same-sex marriage. And with midterm elections three weeks away, the Court is weighing in on voter ID laws and race as a factor in redrawing election districts. We explore the issues.

Guests

Transcript

12:06:47

MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, Supreme Court Justice Sonia Sotomayor came of age during a turbulent and hopeful era for Latinos in America. Veteran Supreme Court reporter and biographer Joan Biskupic will stick around to talk about her new book. But first, the Supreme Court is considering a number of hot button issues this term and reverberations are already being felt in Virginia and states around the country.

12:07:16

MR. KOJO NNAMDIGay marriage advocates celebrated last week as the court opened the door to same sex marriage, but the court did so without actually tackling the question. And with mid-term elections three weeks away, the court is weighing in on issues that could affect mid-term elections around the country, including voter id laws and race as a factor in redrawing election districts. Joining us to talk about this is the aforementioned Joan Biskupic. She's the legal affairs journalist for Reuters.

12:07:44

MR. KOJO NNAMDIShe's the author, most recently, of "Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice." Which, as we said, we'll be discussing a little bit later in the broadcast. Joan, thank you so much for joining us.

12:07:56

MS. JOAN BISKUPICThank you, Kojo.

12:07:57

NNAMDIAlso in studio with us is Robert Barnes. He reports on the Supreme Court for the Washington Post. Bob Barnes, thank you for joining us.

12:08:05

MR. ROBERT BARNESI'm glad to be here.

12:08:06

NNAMDIYou too can join the conversation. If you have questions or comments, give us a call at 800-433-8850. How significant do you think the Supreme Court's decisions are this term? 800-433-8850. You can send email to kojo@wamu.org or shoot us a tweet @kojoshow. Bob, last week, the Supreme Court declined to hear appeals from decisions striking down same- sex marriage bans. But, it's complicated. Where do things stand at the moment?

12:08:34

BARNESI'm afraid it is complicated, yes. There were three appeals courts that had struck down bans in five different states. Almost everyone expected that the Supreme Court was going to take up those cases and provide an answer for the whole nation about whether the Constitution means that you cannot prohibit same-sex marriage by state by state. Instead, the court let those opinions stand. They didn't get involved. And then the next day, the US Court of Appeals for the Ninth Circuit in California struck down two more bans in Idaho and Nevada.

12:09:15

BARNESNow, when all of this eventually plays out all the way, that means that there'll be 35 states and the District of Columbia in which same-sex marriage is legal. And some see this as a way for the court to move rather incrementally, without making the decision itself. It allows same-sex marriage to sort of proliferate around the nation. And perhaps, at some point, it will step in to answer the Constitutional question.

12:09:44

NNAMDIWhich is what some advocates had hoped that the Court would step in and end the bans on gay marriages definitively. The Court has yet to rule directly on the question.

12:09:53

BARNESThat's right. It had a chance a couple of years ago, decided that the case wasn't properly before it. And so, it sort of punted. But, since then, there has been a huge movement. Every federal court that has ruled on these state bans on same-sex marriage has struck down, except for one, in Louisiana. So the trend is definitely moving in one direction.

12:10:19

NNAMDIJoan, you wrote recently about speculation about how the Supreme Court would -- might rule if it does decide to take up the question of same-sex marriage directly. Can you talk about that?

12:10:30

BISKUPICIt's awfully mysterious, because in this case, both sides, people who support these bans and people who are challenging them, wanted the court to intervene. And I believe part of the ambivalence we're seeing with the justices is that they're not sure where they really are. You know, they discuss this, but only in a minimal way. And just as Ruth Bader Ginsberg had said to me that she believes that key swing vote Justice Anthony Kennedy has actually given signals that go in two different directions. One that would be quite supportive of the individual right to same-sex marriage.

12:11:06

BISKUPICBut another that would say states, you work it out. I -- I felt, back in 2013, when they issued their United States versus Windsor decision, which set off this new wave of litigation, that essentially the message was, don't hurry back folks. We still don't want to do it. But then as Bob just mentioned, we saw such a wave of rulings that it seemed that the Supreme Court, inevitably, would have to take it up. But they decide what they have to take up and what they told us last Monday was not yet.

12:11:38

NNAMDIIt just occurs to me that if, at some point, the Supreme Court decides to rule to uphold the bans on same-sex marriage, then the nation will be confronted with a unique prospect of thousands, maybe millions of people not divorcing, but unmarrying.

12:11:54

BARNESWell, that certainly raises a huge question. And some people think that the court has sort of put itself in a position where it's gonna be very hard to rule that way. Because what does happen to all of these thousands and thousands of marriages that have taken place? It's a very tough situation, and you can see that that's got to be -- it had to have played in the justices' minds before they made this decision to let these rulings stand.

12:12:21

NNAMDIJoan, every recent appeals point, as Bob has pointed out, to rule on the question, has found that the Constitution protects a right to same-sex marriage. Do you see any chance that the court could go a different way on that?

12:12:31

BISKUPICI don't think this Supreme Court can, but it obviously wants to take a wait and see attitude. But I would remind you and your listeners to watch what might happen from the Sixth Circuit US Court of Appeals, based in Cincinnati, covering four mid-western states. When we saw oral arguments there, on August 6th, I believe it was, there were plenty of signals that suggested that maybe this court would actually depart. Now, that was August. We've now gotten to October, and that court itself will have seen signal from the Supreme Court just this month.

12:13:08

BISKUPICAnd I'm now wondering what we would see, but that would be our first one, Kojo, that might go in the opposite direction. We also have more conservative circuits, for example, in the southwest, looking at this, that could go the opposite from the trend that Bob has observed.

12:13:23

NNAMDISome say the courts could decide on the issue in the way you describe the latter part of Justice Kennedy's view. And that is leave it up to the states.

12:13:32

BISKUPICBut look at the confusion out there. They could. As I said, the Supreme Court can do whatever it wants. But think of a couple that's married right here in Washington, D.C., then travels down to Alabama, and has to move there, maybe because one of the partners has a job there. There's a lot of uncertainty about their marital benefits down there. Opportunities for the children, opportunities for health issues. Not in a federal vein, because the federal government has now said it's going to recognize a same-sex marriage, irrespective of where it occurs. But there's a lot of uncertainty, state to state.

12:14:06

NNAMDIIn case you're just joining us, we're talking with Joan Biskupic. She's a legal affairs journalist for Reuters. She's the author, most recently, of "Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice." And she is joined in the studio by Robert Barnes. He reports on the Supreme Court for the Washington Post. If you have questions or comments for us, give us a call at 800-433-8850. We're about to move to mid-term elections. Are you concerned about legal decisions that could affect mid-term elections just three weeks away?

12:14:33

NNAMDIGive us a call. 800-433-8850. Bob, as I said, mid-term elections, just three weeks away. So, another significant area that the court has been looking at. Voter id laws. This is the first election after a slew of more restrictive voter registration and voter id laws were passed by many states. What's going on there?

12:14:52

BARNESWell, what's going on there are some emergency applications to the court. We've had three so far from Ohio, from North Carolina and from Wisconsin. And the court has kind of split on this in a way. It allowed some more restrictive laws to take place in Ohio, which cut back on the amount of early voting, which everyone agrees, early voting is something that is used disproportionately by minority voters. They allowed North Carolina's law, which got rid of same day registration to stand.

12:15:32

BARNESBut at the same time, then they voted that Wisconsin could not implement its new law on voter id. Now, it's kind of funny. I wrote a story about this today, a column about this. The court didn't explain any of these decisions. The majority who ruled this way in these three emergency applications just ruled and that was that. So we don't know their reasoning, exactly. But it would appear that the one thing that these three cases have in common is that lower courts stepped in and made changes fairly close to the election. And the Supreme Court changed all of those.

12:16:08

BARNESI think the court is worried about making changes in voting laws so close to an election.

12:16:15

NNAMDIJoan?

12:16:16

BISKUPICYes, and we have a lot of very tough races out there, so the rules that the court is overseeing at this point are really going to make a difference in key states. And I would say Wisconsin is one of them. And we have another case percolating up from Texas, where there's a voter id issue there. So, I think both sides realize it's important to get this resolved and sue early and often and get it done with for November.

12:16:41

NNAMDIWhat do you think, Bob, the court is signaling at this point on the issue of voting laws if anything? I guess Wisconsin was a little different because people had already started voting there, without using voter id.

12:16:51

BARNESI think that that was key in the Wisconsin case. Even the justice, the three justices who said they would have let the law go into effect noted that they were worried about the idea that voting had already begun in that state. But I think that the court has not talked about the merits of any of these laws. And so I think that those cases are going to get to the court in due time, and I think we have another sort of show down coming. As you know, a few years ago, the court said that a voter id law in Indiana was Constitutional. But since then, there's been a lot more research.

12:17:32

BARNESThere's been a lot more concern from some states and a lot more evidence about people having trouble getting a photo id. That sounds funny to a lot of us, who know and use photo ids all the time to do all sorts of things. But apparently, there are thousands and thousands of people who don't. And so, I think when this issue comes back to the court, there's going to be a lot of evidence that wasn't there the first time around.

12:18:00

NNAMDIFederal judge in Texas struck down that state's voter id law, saying the law was essentially an unconstitutional poll tax. Does it look like the Supreme Court will, at some point, decide on that aspect of the issue?

12:18:13

BARNESI think that depends. That case has now gone on an emergency basis to the 5th Circuit Court of Appeals. And so there has been no decision from an appeals court yet about that case. But I certainly wouldn't be surprised if the losing side, from that decision, brings it to the Supreme Court for a quick decision. We're getting awfully close to the election now, however.

12:18:35

12:18:40

BARNESWell, that case is about when the legislature draws the congressional districts and the legislative districts, and the Supreme Court has said that partisan interests are okay. They expect that politicians are going to draw lines to protect incumbents and to protect their party. And that the court really doesn't have much business in that. But it is different about race. And there, it's a little more confusing. On the one hand, the Voting Rights Act makes it so that legislators cannot make it harder for minorities to elect the representatives of their choice.

12:19:21

BARNESOn the other hand, they say that they can't overuse race. And in these cases, in Virginia, and in a pending case from Alabama, what the challengers to those redistricting measures say is that the legislators packed too many minority voters into one district. And so the result of that was that all the surrounding districts came -- became more white and it made it easier for them to elect legislators that they wanted to. And it made it more difficult for minority voters to have influence in those districts.

12:20:00

12:20:06

BARNESWell, that's part of it. But the main thing is that the law says that you can't diminish those districts. You can't -- when there's a majority-minority district as they call them where it's easy to -- easier to elect a minority representative that the legislature can't come in and make it harder. So some legislators have said, okay, well then, we'll make it much, much easier by putting all of the minority voters in one place.

12:20:33

NNAMDII understand the Supreme Court could weigh in on a very similar case.

12:20:35

BARNESYes, there's a case from Alabama in which the black legislators actually are challenging it. So even though it kept safe all of the districts of those black legislators who had been elected to the state legislature, they say that their influence is hurt because they don't really have anyone to partner with outside of those districts. And so, in effect, it's making white Democrats in Alabama an endangered species.

12:21:05

NNAMDIJustice Ruth Bader Ginsburg has gotten questions, Joan, about whether she plans to retire anytime soon. Can you give us any insight?

12:21:13

BISKUPICWell, she definitively says stop looking at me to retire. She says a couple of things about that. First of all, as many of your listeners know, she's 81 years old. She survived two serious bouts with cancer. But she feels like she need not go anywhere. What she says to Democrats who are encouraging her to leave is, do you think you're going to get somebody as liberal as me in this atmosphere with the Senate as polarized as it is if I were to leave?

12:21:42

BISKUPICAnd she essentially says what matters to her is how well she's doing the job and she's slipping it all, and she feels that she's right in there. She actually seems at the top of her game, frankly. Since 2010 when Justice John Paul Stevens retired, she became the most senior liberal and now speaks for the left wing with very passionate dissents. And when they're in the majority, she assigns the opinion.

12:22:09

NNAMDII'm certainly seeing no sign of slippage. Bob, your thoughts on the current justices and what might lie ahead.

12:22:13

BARNESWell, Joan's exactly right. Justice Ginsburg has made it quite clear that she'll go when she's ready to go and not before then. You know, it's interesting. She has really, by her comments, though, brought out into the open something that people have just sort of hinted about in the past or has left to speculation and that is when how much does a justice take into account politics when making a decision about the time to go.

12:22:43

BARNESWhen I did a profile of her last year and we talked about this, she said, well, you know, I think a Democrat will be elected president in 2016. Democrats have troubles in the midterms elections, but they do fine in presidential years. So she is very openly talking about this thing that, for a long time, justices really didn't want to discuss. And that is the politics of their departure.

12:23:08

NNAMDIBefore we go, Joan, Bob, what else are you watching on the court at this time?

12:23:13

BISKUPICWell, we've got a couple fascinating cases. Just last week, we had one involving religious rights and prisoner security. A man who's a Muslim wanted to be able to grow a beard so that he could carry out his faith. And prison officials in Arkansas said, no, that would conflict with our security rules. Who knows what kinds of weapons might be hidden in your beard.

12:23:32

NNAMDIJustice Scalia had an amusing comment about that, didn't he?

12:23:35

BISKUPICOh, yeah, he wanted a hat and the prisoner said I only want a half-inch beard. And he said, are we going to decide these cases half inch by half inch?

12:23:41

NNAMDIExactly.

12:23:42

BISKUPICBut anyway, so there's a good religious liberties one there. We have a Facebook case involving First Amendment rights. So even though we don't have same-sex marriage, which all of us said would be there, we have some other hot button issues. And the court will continue taking cases through early next year.

12:24:00

NNAMDIWhat else are you looking at, Bob?

12:24:00

BARNESWell, I think Joan has hit the sort of high point in that. There is, we should point out, there is a chance that same-sex marriage could come back this year if the sixth circuit rules against it, there is still time for the Court to be forced really to take up that big question. We don't know that yet. There are also, you know, there have been a number of state laws that have restricted access to abortion. Abortion is something that the Court really hasn't considered in quite some time.

12:24:34

BARNESAnd those cases are making their way pretty quickly to the Supreme Court. And it's very possible that one of these restrictive laws will be reviewed and the Court will have to determine whether these restrictions are, quote, "an undue burden on women," which is the test that the Court has come up with.

12:24:52

NNAMDILet's hear from John in Arlington, Va. John, you're on the air, go ahead please.

12:24:57

JOHNYeah, I had a question about the case in Virginia. The Court has issued a number of rulings with regards to race, particularly with affirmative action and schools and other settings. And it seems like in those cases, the Court has said, you know, other parts of the Constitution suggest that race should almost never be used as a proxy for something. And I'm kind of wondering how the Court can reconcile those decisions with the possibility of allowing race to a factor even as a proxy for political power and redistricting?

12:25:29

NNAMDIBob?

12:25:30

BARNESI think that's a very good point. And the point has certainly struggled with this in the past. You may remember Chief Justice John Roberts in his first year on the Court dealt with one of these redistricting cases and he had this sort of famous quote, "It's a sordid business this divvying us up by race." I think he's quite uncomfortable with that -- with that subject, with that topic and with the use of race.

12:25:59

BARNESAnd so, it will be very interesting to see what the conservatives on the Court want to do with these redistricting cases because I think it could cause some concern for them. On the other hand, the civil rights groups, they both worry that it's come around to sort of hurt Democrats in a way in redistricting. But then they're also worried about what would happen if the Court says that you can't use race. And so, I think it will be a very interesting case and one that maybe hasn't gotten quite the attention that it deserves.

12:26:32

NNAMDICare to comment, Joan?

12:26:33

BISKUPICNo, just that remind people the last time they took up race was in the Shelby County case just about a year and a half ago when the justices, by a 5 to 4 vote, really did curtail the Voting Rights Act of 1965.

12:26:46

NNAMDIGot to take a short break. Robert Barnes, thank you so much for joining us.

12:26:49

BARNESYou're welcome. Thanks, and thanks for asking me.

12:26:51

NNAMDIBob Barnes reports on the Supreme Court for the Washington Post. When we come back, we will be continuing our conversation with Joan Biskupic. We'll be talking about her new book. It's called, "Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice." You can start calling now. Are you a fan of Justice Sotomayor or not? 800-433-8850. Send email to kojo@wamu.org. I'm Kojo Nnamdi.

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